Law Times

Page 8 May 28, 2018 • Law TiMes www.lawtimesnews.com Workplace restorations can help after investigations BY DALE SMITH For Law Times A fter a harassment in- vestigation or media- tion over inappropri- ate behaviour in a workplace, lawyers say the en- vironment can become toxic to employees. Employment lawyers say that a workplace restoration process is a better way of dealing with the fallout of investigations and can help to return a sense of normalcy to a workplace. "We all live and now work in the #MeToo world," says Elana Fleischmann of Elana Fleisch- mann and Associates and the former head of the dispute reso- lution office at Ontario's Minis- try of the Attorney General. "Lawyers have to be able to counsel their clients effectively, and that includes employees, employers, boards of directors, non-profits," says Fleischmann. "They also have to be proac- tive in terms of taking the time to understand what their clients' workplace cultures are about and monitoring changes when they're required." Fleischmann notes that so much new legislation, both pro- vincially and federally, related to workplaces and harassment, whether that is bullying or sexual harassment, means that lawyers need to understand the changes in order to give clients the right tools in order to ensure that they have formal procedures to keep workplaces healthy and safe, on top of being compliant with the new legislation. Ontario's Occupational Health and Safety Act requires an employer to investigate and report back on harassment com- plaints, and the federal govern- ment's bill C-65 will mirror many of those requirements for federally regulated workplaces, once passed. Mediation has its limits, too. Fleischmann notes that media- tion does not apply in situations of criminal sexual assault. William Goldbloom, an as- sociate with Rubin Thomlinson LLP in Toronto, says that while lawyers recognize that their work resolves certain kinds of conf licts or answers certain questions in a narrow sense, do- ing an investigation as to wheth- er something has happened or not won't necessarily delve into the systemic issues at the heart of a harassment complaint. "Lawyers, in the nature of their practice, may be limited because they specialize in really fulfilling the legal obligations that organizations have," says Goldbloom. "When it comes to wanting to restore a broken relationship, it's beneficial for lawyers to of- fer internal or positive solutions for moving forward," says Tracy Bergeron Lucha, of counsel with Dickinson Wright LLP in To- ronto. Bergeron Lucha notes that the "old way" of moving employ- ees after a harassment investiga- tion can cost a company more in the long run, whether it's with settlements or paying out termi- nations. "Trying to focus on modern ways of restoring the relation- ship is definitely beneficial," says Bergeron Lucha. "In this societal climate, we need to focus on a more collab- orative approach," she adds. Fleischmann says that, in some cases, a toxic workplace can involve a post-harassment investigation situation where camps have been formed, ru- mours run rampant and staff is unproductive. Fleischmann says there is no particular guideline for doing a workplace restoration, but it will often involve her coming in to do an assessment that meets in- dividually with staff and manag- ers in order to find the cause of the dysfunction. She says the most important aspect of an assessment is earn- ing the trust of the employees. "That involves really taking the time to speak to them about the process, what they can ex- pect from it, to ensure that it's a private, confidential process that they won't be named [in an] individual report, that it's not disciplinary, it's not rights-based and won't go into their HR file," says Fleischmann. "Once you establish that trust and credibility, they often open up and tell you what you need to hear." Fleischmann says that once the data has been gathered and analyzed, a restoration report is prepared. The report can look at organizational challenges, financial resource challenges, perceptions of workplace cul- ture, the history of interactions between the parties and if there are outside factors such as the impact of a union presence or a history of revenue losses. The recommendations can include facilitated conversations between parties, coaching or mentoring individuals or creat- ing a code of conduct with the input of staff, which might in- clude salutations upon arriving and leaving the workplace. "That's often very important — to feel respected, they want their colleagues to say good morning and good evening to them," says Fleischmann. She adds that because staff developed their own code, it tends to be more durable. Fleischmann says there has been great success in using a restorative justice approach, of- ten by adapting the "sentencing circles" approach within a work- place environment, which helps employees going forward, and that can help guide the creation of a code of conduct. Goldbloom says he has ex- perience in one-on-one restora- tion work at the culmination of a workplace investigation, where it was determined that one of the parties involved was in need of remedial coaching. "Doing one-on-one training allows people to see how their conduct, which they perhaps thought was relatively innocu- ous or kind and welcome, from an objective perspective would actually be considered unwel- come," says Goldbloom. LT Tracy Bergeron Lucha notes that the old-fashioned model for employers to move employees after a harassment investigation can cost a company more in the long run, whether it's with settlements or paying out terminations. FOCUS FOCUS ON Labour & Employment Law Tell us which legal vendors and service providers are the best at what they do and help put your choice on the podium. Vote and you could win a $200 Amazon.ca gift card. Visit canadianlawyermag.com/surveys VOTING CLOSES JUNE 25 LET'S GIVE THEM THE RECOGNITION THEY DESERVE CHOOSE YOUR FAVOURITE SUPPLIERS THE THIRD ANNUAL CANADIAN LAWYER READERS' CHOICE SURVEY IS NOW OPEN Untitled-4 1 2018-05-22 3:32 PM

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